Thursday, November 03, 2005

I came across two interesting pieces about the Alito nomination that I think are worth a recommendation.

The first is by John Hinderaker at Powerline, addressing Alito's dissent in the Casey decision and what it may or may not tell us about what type of Justice he would be:

If you are an abortion opponent and read Alito's dissent, you will likely be disappointed. It is technical and dispassionate; the issue on which Alito differed with his colleagues was whether the notification requirement constituted an "undue burden" on the right to abortion, under the Supreme Court's jurisprudence as it then existed. The opinion conveys no hint of Alito's own views on the topic of abortion, or even of his opinion as to how (if at all) the Constitution should bear on the subject of abortion. Rather, and somewhat ironically, his dissent is an effort to follow the twists and turns of Justice O'Connor's various opinions on the topic of "undue burden," and apply them to the record before him. The most one can fairly say, I think, is that Judge Alito's dissent in Casey does not evince any reflexive hostility to restrictions on abortion, and does reflect what most conservatives would regard as an appropriate deference to the legislature's role as arbiter of public policy. Anyone looking for the sort of fiery language that sometimes enlivens, say, Janice Rogers Brown's opinions, will be disappointed.

A judge on the Court of Appeals, like a District Court judge, takes Supreme Court jurisprudence as he finds it. His opinion as to whether the Supreme Court's rulings are right or wrong is entirely irrelevant. His duty is to apply the relevant Supreme Court decisions to the case before him, as best he can. Thus, in an area like abortion where Supreme Court precedent is relatively plentiful, reading an appellate judge's opinions is like reading tea leaves: one is unlikely to pick up more than obscure hints as to the judge's own views.

The other piece is by Norman Ornstein of AEI, in Roll Call, writing about Alito in comparison to Chief Justice Roberts:

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce--and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.” Whatever it is, it’s not judicial restraint.

Roberts is a very conservative guy, and a strict constructionist--one who means it. He understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

I share much of this view of legislative primacy in the Constitution (it is reflected in my disagreements with Bibamus in the last post's comments, for example). I would like to see more examples from Alito's rulings to figure out how much of an issue this should be in his confirmation.

6 comments:

Anonymous
said...

it should be noted that it is probably not "legal" for many thugs in third world countries to have AK-47s, yet they have AK-47s. meanwhile honest, nice people in oppressed, third-world countries do not have guns or AK-47s.

more or more effective regulation of guns may be needed in the U.S. however, the right to bear arms by honest, nice people is a fundamental constitutional right.

Here is exactly the point where we go through the looking glass in the process of confirming right-wing justices. Why on earth should we be reading tea leaves? Why can't we just get straight answers to questions on this point?

The answer, I think, is that the answers would prove deeply unpopular with the American people. So we get Clarence Thomes telling Senators that he has never really thought about Roe. Or John Roberts taking non-positions about respecting precedent and whatnot.

According to Gallup: "If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%."

So you can't say that out loud. (But at the same time, if you don't whisper it loud enough to the right wing, they flip out, a la Miers.)

The reason that nominees do not state upfront how they would rule on hypothetical cases is that it would certainly take away the presumption of that the judge will have an open mind when a case comes before the court. (I believe that Justice Ginsburg sidestepped many such hypotheticals -- and for good reason.)

The idea of picking judges on some sort of popularity contest over how their opinions would line up with a Gallup poll misses the point of having a judicial system. While the pro-choice crowd may want judges to follow popular opinion, I doubt that the freedom of speech crowd on the left would be very happy with this. The ACLU often takes unpopular stands -- based on principles. If popular opinion is so in favor of abortion, then the legislative process should be able to get to the pro-choice side's preferred outcome. (Personally, I support choice -- but I understand that other human beings can disagree.)

Results-based measures (i.e., litmus tests of whether someone agrees with you) of whether you prefer one judge seem to relegate the judiciary to a weaker version of the legislature.

The examples of Alito's opinions cited in Andrew's blog raise some very interesting questions about where Judge Alito falls on the question of the role of legislatures versus the role of courts.

"Results-based measures (i.e., litmus tests of whether someone agrees with you) of whether you prefer one judge seem to relegate the judiciary to a weaker version of the legislature."

My point is that we are already doing this, we just don't admit it.

Every judge appointed in the last 25 years has come to the bench with a predisposition on Roe. Believing otherwise stikes me as shockingly naive.

All I am saying is that we should dispense with any pretense to the contrary.

Thomas was always going to vote to overturn Roe. Ginsburg was always going to vote to uphold. Why shouldn't we just be honest about this up front?

The reason we play this guessing game has, in reality, nothing to do with princple. It has to do with politics.

And I am not saying that judges need to follow popular opinion. What I am saying is that popular opinion is the reason right wing nominees have to disguise their views on abortion.

The constant insistance that this reticence has anything to do with the 'presumption of ... an open mind' or any such thing is precisely what is so frustrating. It doesn't. It has to do with the fact that it would be harder, or impossible, to confirm a nominee who sat before the Judiciary Committee and said "I believe that Roe was wrongly decided. Given the opportunity, I will vote to overturn Roe."

The left does the same thing, just not on Roe. No Democratic nominee who stated in plain terms their predisposition to uphold, say, Texas v. Johnson, is likely to be confirmed. So they hide behind the same principles about prejudging or whatnot. It is no less maddening when it helps my side than when it helps your side.

"my side"? I've often given money to the ACLU so I'm amused by being lumped in with the "right wingers". I agree that it is frustrating that both sides like to use any argument that is convenient. Here is another one that seems pretty silly: O'Connor was a moderate so the President should follow with a moderate. Hmm...so if Scalia leaves the SC while a Democrat is in the Oval Office, these same people will argue that a Democratic President should nominate someone like Scalia? Yeah, right...and I have a bridge in Brooklyn to sell you.

It would be nice to live in the world you imagine where people could have an honest debate at these nomination hearings -- but partisan politics seem to get in the way.

About Me

I am a Professor of Economics and the Director of the Nelson A. Rockefeller Center at Dartmouth College. I am on the board of Ledyard Financial Group (LFGP) and currently serve on the Census Scientific Advisory Committee. I blog about economics, politics, and current events at http://samwick.blogspot.com. The opinions expressed here, there, and everywhere do not necessarily reflect the views of Dartmouth College or any other institution with which I am affiliated.

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